A Top Level Domain system that encompasses several geographical regions requires careful consideration of domestic policies and legal principles. Indeed, just as an economic regional agreement requires consideration of each country''s financial situation, among others, sharing a Top Level Domain system requires the analysis of the states'''''''' public policies and legal principles. For instance, the European Union''''''''s Top Level Domain system, .eu, is subject to community regulations that appropriately address the concerns of the member states. This article provides information on public policy considerations incorporated in the .eu Top Level Domain system regulations, and an example of how these public policy considerations triumph individual''''''''s rights.
The European Union (EU) regulates the .eu Top Level Domain system (TLDS) through Regulation (EC) No. 733/2002 of the European Parliament and of the Council of April 22, 2002, and implementing Regulation No. 874/2004. Two articles of Regulation 733/2002 particularly address public policies regarding .eu TLDS.
Article 5 of Regulation 733/2002, a mandate to the Commission, states that the implementation of .eu TLDS must include public policy principles on registration. The following are the public policy considerations that this regulation requires,
"(a) an extra-judicial settlement of conflicts policy;
(b) public policy on speculative and abusive registration of domain names including the possibility of registrations of domain names in a phased manner to ensure appropriate temporary opportunities for the holders of prior rights recognized or established by national and/or Community law and for public bodies to register their names;
(c) policy on possible revocation of domain names, including the question of bona vacantia ;
(d) issues of language and geographical concepts;
(e) treatment of intellectual property and other rights."
The use of geographical language and concepts is a sensitive issue when it comes to registration of domain names. For this reason, Regulation 733/2002 particularly addresses this concern. For instance, this regulation requires that member states notify to the Commission and other member states a limited list of broadly-recognized geographical and/or geopolitical names that affect their political or territorial organization. The list included names that may either "(a) not be registered, or (b) be registered only under a second level domain according to the public policy rules." Then, the Commission shall notify the Registry the list of notified names and publish the list.
Article 7 of Regulation No. 733/2002 introduces another public policy consideration. It states that the Community will retain all rights relating to the .eu TLDS. This includes intellectual property rights to the Registry databases and the right to re-designate the Registry. This is an extremely important public policy principle, fundamental to an orderly administration of the TLDS.
Regulation No. 874/2004 implemented Regulation 733/2002. The preamble to Regulation No. 874/2004 introduces a policy consideration when it states that the Commission is authorized to select domain names to be used by the institutions of the Community, and to designate the operator of those domain names. Also, the Registry is empowered to reserve some domain names for its operational functions. Lastly, the preamble states, member states are authorized to designate an operator that will register as a domain name the country''s official name and the name under which it is commonly known.
In addition to this policy consideration in the Regulation''''''''s preamble, Regulation No. 874/2004 incorporates mandates that directly address domestic legal topics such as trademarks and copyrights, among others. Article 10(1) of Regulation No 874/2004 introduced an extremely important public policy principle for the .eu TLD States that "[H]olders of prior rights recognized or established by national and/or Community law and public bodies shall be eligible to apply to register domain names during a period of phased registration before general registration of .eu domain starts."Prior rights" shall be understood to include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works."
The Commission, through Decision 2002/375/EC of May 21, 2003, designated the European Registry for Internet Domains (EURid) as the non-profit agency in charge of managing .eu TLDS. EURid is incorporated under the laws of Belgium. Galileo Lebensmittel GmbH & Co v. the Commission of the European Communities, 2009 ECJ EUR-Lex LEXIS 138, is an interesting case involving a EURid decision and the .eu TLDS regulations.
Galileo Lebensmittel GmbH & Co is a company that holds several trademarks, including the word mark Galileo registered with the German Patent and Trademark Office. Galileo applied to EURid for the registration of the domain name Galileo.eu. EURid denied the application because the Commission had reserved this domain name for its institutions and bodies, as authorized by Regulation No. 874/2004. Galileo then brought an action for annulment of the Commission''''''''s decision to reserve the domain name Galileo.eu for its institutions and bodies. The court of first instance denied Galileo''''''''s claim. Galileo appealed before European Court of Justice (ECJ). The ECJ confirmed the court of first instance and, after the analysis of several legal issues, held that "an individual to whom a Commission decision is not of direct and individual concern and whose interests are therefore unaffected by that measure cannot invoke the right to judicial protection in relation to that decision." In other words, the ECJ considered that Galileo was not entitled to judicial protection in regards to the Commission''''''''s decision to reserve Galileo.eu for its operations because that decision was not of direct or individual concern. Public policy and the Commission''''''''s rights to reserve domain names triumph the prior rights principle established by Regulation No. 874/2004.